"At about 10:30 a.m. or 10:45 a.m. on February 2, 2009, Joshua Castrillon and his girlfriend, Silvia Arellano, left their Chula Vista home and drove her 2007 dark gray 530i BMW to Pacific Beach to have breakfast at Rocky's restaurant. Castrillon drove the BMW while Arellano sat in the front passenger's seat. As soon as they parked on Ingraham Street in front of the restaurant, a Lincoln Navigator pulled up in front of them and three men (Ortiz, Martinez, and Quezada) got out and approached the BMW. The men were wearing dark clothes, gloves, and sweatshirts with hoods pulled over their heads. Martinez, holding a gun, pushed Castrillon, who had just opened the driver's door to get out, back into the car and over the center console into the back seat. Castrillon sat directly behind the driver's seat. Martinez then sat in the driver's seat. At the same time, Ortiz stopped Arellano from opening the front passenger's door further, ordered her to get back in, and shut her door. Quezada entered the car from the right rear passenger's door and sat in the middle back seat. Ortiz then got in the back seat and sat to the right of Quezada, directly behind Arellano. Martinez drove the BMW south on Ingraham Street. He told Arellano to do whatever he said and everything would be fine. When Ortiz asked Arellano for her cell phone, she accidentally handed him her iPod and then saw it fly out the window. When she reached back into her purse to find her cell phone, Ortiz placed a taser to her back and said, 'Make sure she's not dialing.' She handed Ortiz her purse and then felt a taser sting her back.

Paul Fatta, an owner of the Big Kahuna restaurant adjacent to Rocky's, witnessed the incident and called 911. He described the three men as Hispanic and wearing loosefitting jeans and hooded sweatshirts. San Diego Police Officer Howard Spetter responded to the dispatch regarding a carjacking of the BMW and soon located and began following it. The BMW turned onto the eastbound I-8 freeway. Martinez saw the police car following him and told Arellano to 'be cool' and 'not . . . do anything stupid' if he got pulled over. Quezada spoke to someone on his cell phone and then he or Ortiz told Martinez to '[j]ust try not to get stopped by the police.'

Meanwhile, San Diego Police Officer Elias Rodriguez, a tactical flight officer, was flying in the airborne law enforcement (ABLE) helicopter and responded to the dispatch regarding the carjacked BMW. He saw a vehicle matching the BMW's description on the I-8 freeway at its interchange with the I-5 freeway; Spetter's patrol car was following it. Martinez began changing lanes and driving slower than the speed limit. He then made an abrupt lane change, cutting across two lanes, and drove onto Hotel Circle. Spetter then turned on his lights and siren and pursued the BMW. Martinez went through a stop sign, and accelerated to 90 miles per hour in a 35-mile-per-hour zone. He weaved in and out of traffic, crossed into the oncoming lane of traffic, and nearly collided with other vehicles. Martinez yelled, 'Get ready.' He threw his gun out the front passenger window. He went through another stop sign and then entered back onto eastbound I-8. San Diego Police Officer Lisa Hartman joined Spetter in his pursuit of the BMW.

Martinez cut across all the traffic lanes, pulled over, and stopped on the left shoulder of the freeway's center divide. Martinez, Ortiz, and Quezada jumped out of the car and began running. They jumped over the center divider wall and ran across the westbound lanes of freeway traffic. They then climbed over a fence and ran toward the adjacent Motel 6. As they ran through its parking lot, they removed articles of clothing. They ran through the Motel 6 and out its back door near the San Diego River. San Diego Police Sergeant Charles Lara drove into the Motel 6's parking lot and saw people pointing north. He got out of his car with his pistol drawn, heard rustling noises in the bushes, and saw three men walking north in the waist-deep water of the San Diego River. He yelled, 'Show me your hands [or] I will shoot you.' They complied with his order that they return to the riverbank. Martinez was wearing a black shirt, Ortiz a white shirt, and Quezada a black-hooded sweatshirt. Officers found baseball caps, a jacket, and five gloves that Defendants had discarded on or near the Motel 6 property. A $100 bill was found in the jacket's pocket. In the Hotel Circle area along the pursuit route, police found a loaded 9-millimeter Glock pistol, an unloaded Beretta pistol, a magazine, and bullets.

Meanwhile, Spetter and Hartman found Castrillon and Arellano in the BMW and ordered Castrillon to get out. Castrillon appeared terrified and Arellano was shaking, crying, and curled up in the fetal position."

Freaky. I'd be terrified as well. Maybe even curled up in the fetal position. Wow.

One portion of the opinion nonetheless made me question myself.

As I forthrightly said, one reason I thought the case affected me as deeply as it did was because it was both close in proximity and involved circumstances in which I could easily place myself. There but for the grace of God, etc.

But then, after reading all the facts and forming a strong emotional reaction, I get to this paragraph:

"On February 5, 2009, Castrillon told investigators he believed the kidnapping was the result of his not paying for a large amount of marijuana coming from Tijuana. In 2008, Castrillon became acquainted with Arturo Galarza, who introduced him to Daniel Jasso, an affiliate of Teodoro Garcia Simental, a former lieutenant of a Mexican drug cartel. Castrillon agreed to organize the smuggling of 100 kilos of marijuana, worth $70,000 to $100,000, from Tijuana to the United States. However, when the marijuana never arrived, Castrillon was responsible for its $70,000 to $100,000 value."

Dude! Here I was thinking it could totally be me, and that they were just after your nice ride, and only later do I find out that they jacked you because you stiffed a Mexican drug cartel! What did you think was going to happen?! "Oh, don't worry about the hundred grand. We're cool." No. No chance.

But here's the thing: Learning that this "couldn't" happen to me -- because I rarely make six-figure deals with Mexican drug cartels -- diminished my emotional desire to see the defendants here rot in prison for the rest of their life. But that's clearly wrong, right? They still did the exact same crime I read about. That it "couldn't happen to me" doesn't at all change their just desserts. Isn't it wrong for me to change my opinion simply because one of the victims stiffed a drug lord? He's still not "asking" for it. Much less is his girlfriend.

Yet, emotionally, it definitely mattered.

Which leads to the question: Which is wrong? My initial reaction that they should be sentenced to life? Was that an irrational, overly emotional response? Or is what was wrong my later reaction that maybe a sentence of something less than life would be tolerable? Is that just because I insufficiently feel the pain of victims who are "others"?

I don't know. Truly. But it does seem that one of these two reactions -- if not both -- are misguided. If only because they're inconsistent. And yes, I know, emotions inevitably matter, and we all feel a special bond to people (including victims) who are "like" us, and things like that may routinely color our analysis. But that doesn't make it right. And when we catch ourselves doing it, it calls for some self-examination.

There's an old saying that a conservative is a liberal who's been mugged. In my case, that's not true: I've undergone the latter (at gunpoint, no less), and it didn't change my attitude about crime. But in this case, I have a strong sense that my emotions clearly colored my analysis. In a way I didn't like. Or at least couldn't rationalize as intellectually permissible.

Tuesday, August 28, 2012

Let's say you decide to carry a knife. Maybe you're going fishing. Maybe -- since you're not carrying a fishing pole, and since this is what you'll eventually tell the officer -- you're carrying it for self-defense. It doesn't matter.

First point: Don't conceal it. That's a crime. It can get you five years in prison.

Second point: If you ignore the first point, when you get on the trolley, buy a ticket. Otherwise you might well get stopped for not having a ticket, they'll spot the concealed knife, and prison will be your destination. Your effort to cloak yourself in the Second Amendment to avoid this fate will completely fail.

Monday, August 27, 2012

I'm probably in the middle between Judge Betty Fletcher -- who seems certain that there's error and that it's not harmless -- and Judge Milan Smith, who seems certain that there's neither error nor harm. See where you fall in this case.

I generally agree with Judge Fletcher that we should be hesitant to allow the prosecution to introduce evidence involving other charges. If this evidence establishes a modus operandi or something like that, okay, but normally, that stuff's more prejudicial than probative. We don't want the jury to convict on the basis of the defendant's character, or other conduct. We want 'em focusing on the charge at issue, and not be distracted by other stuff.

At the same time, however, there's a pretty good argument that the prosecution here was introducing the previous charge for a much more limited issue -- one that went entirely to intent. Prior to the charges at issue, the SEC charged defendant with very similar conduct. Sure, there wasn't much evidence that the prior charges were actually true (though, even on this limited point, I think Judge Fletcher somewhat minimizes the available evidence, particularly the reasonable inferences derived from the testimony of the key witness). But that's arguably not the point. The point was to show that the defendant knew what SEC Rule S-8 required -- a key issue at this trial -- and that defendant had been previously charged with such an offense seems pretty relevant to that point.

Imagine, for example, a defendant charged with running a red light who says he thought (erroneously) that he was permitted to do so because he was rushing to get his pregnant wife to the hospital. In that case, the prosecution wants to introduce evidence that, one year ago, he was prosecuted for doing the same thing -- running a red light to take his pregnant wife to the hospital. Judge Fletcher says that to allow such evidence the prosecution has introduce evidence that the defendant was, in fact, guilty on the earlier occasion. But I don't see why. The evidence's introduced to show that the defendant knew -- or more likely knew -- that having a pregnant wife wasn't an excuse, because he was charged in a prior offense, which likely put him on notice as to the actual contents of the law regardless of whether he in fact ran the red light on the prior occasion. The prosecution's just trying to prove knowledge, not whether he actually did it.

You still have to do the 403 prejudice test, of course. But it's relevant, and so Judge Fletcher's holding that it's inadmissible unless the prosecution introduces evidence that he was actually guilty on that prior occasion seems a bit misguided.

On a less doctrinal front, I also don't entirely share Judge Fletcher's cynical view of the prosecution's key witness. He's a classic "flipped co-conspirator" witness. Yes, he's a felon. Yes, he lied on his tax return. Yes, he's getting benefits in sentencing in return for his testimony. (And, yes, allegedly he had a falling out with the defendant after he hit on the defendant's daughter -- something you don't usually see in these sorts of cases.) So all of these admittedly require a credibility call, but I don't think that the witness here is any less credible than the usual "snitch" witnesses, and indeed, he's a lot more credible than lots of the "he spontaneously confessed to me when he was in the jail cell next to me" witnesses you constantly read out in criminal cases. In fact, on paper, I think the witness is likely telling the truth. Yeah, he only testified because he got caught, but that doesn't make his testimony any less true. So I don't share the suspicious, somewhat anti-snitch tone with which Judge Fletcher describes this testimony.

At the same time, however, I think it's a close case. Judge Smith not only thinks there's no error, but that it's harmless anyway. Could be. But it's a total credibility call. If this error is harmless, then they all are. We might as well do away with trials and just resolve these things on the papers. Seems like you need a jury to decide who's telling the truth.

Even though, if it's me, I tend to believe the prosecution -- and its key witness -- on this one. Seems to me that Bailey's trying to illegally circumvent the SEC investment rules.

But I guess the jury can decide that on remand. Without hearing about the prior charges.

Sometimes, though, in doing things quickly, one may give overly short shrift to particular components. And Judge Kozinski might do that a bit here.

The complainant alleges that a district court judge was, essentially, a huge jerk to two of his or her staff members, and (1) fired them, and (2) tried to interfere with the efforts of one of them to get a new job. I don't know who we're talking about here, but my guess is that it couldn't be too hard to figure out.

Judge Kozinski is right that the allegations here don't really count as judicial misconduct. It's administrative stuff that's not really cognizable in a misconduct complaint.

But one of the allegations is that the district judge told his current employees that s/he'd fire anyone who even talked to the two terminated employees. Fired even if these conversation were outside the workplace and concerned solely personal matters.

Again, I don't think this counts as misconduct, at least in the "Ninth Circuit complaint" sort of way. But it does usually constitute being somewhat of a jerk, and it might even constitute a violation of the employee's First Amendment rights (speech, association, etc.).

Chief Judge Kozinski dismiss this allegation by saying, in part: "But limiting whom employees may speak to, on and off the job, can be a legitimate management prerogative. For example, judges may forbid court employees from having private conversations with litigants or lawyers about pending cases." But these types of limitations are worlds apart from what (allegedly) transpired here, and somewhat minimizes the potential impropriety. Limiting communication when -- as in Judge Kozinski's example -- there's obviously a state interest in the limitation is different from limiting speech and association purely out of pique.

It's the right resolution. But I might have expressed some slight additional concern over this allegation rather than analogizing it to entirely proper conduct that's very dissimilar to the (alleged) case at hand.

Even though, as usual in these types of cases, Judge Kozinski gets the ultimate resolution right.

(Not that the Ninth Circuit gets this one wrong. It doesn't. And not like polar bears in the wild are going to have it great anyway. Global warming and all. Thank you, human race. Good luck to all the polar bears trying to find seals without any nice. Better luck interbreeding with grizzlies as they extend into your range. Feel the love.)

Thursday, August 23, 2012

I think we'd all agree that placing a kid in a foster home that would require the kid to be in a car ten hours a week in order to visit his natural parent(s) -- which is part of the unification plan here -- doesn't satisfy a statutory requirement that dictates that the child be placed in "reasonable proximity" to his parents. It's not in the best interests of the child, and the two locations -- Northern San Diego County and Riverside -- are insufficiently close to satisfy the statute.

(I leave for another day whether it's really in the child's best interests to have anything to do with his mother. She's not married to the kid's father, fights with him constantly, clearly has substance abuse problems, and the seven other children of the mother and father are all in the custody of others at this point. Oh, yeah, and the mother constantly cancels appointments to visit the kid because she's "sick".)

The only part of his opinion that might be a bit deficient is his linguistic analysis. Justice Huffman argues that "reasonable proximity" essentially means "darn close" by relying on Webster's definition of "proximate" as "very near." But "proximate" and "proximity" are two different words, and don't necessarily mean the same thing despite the fact that one's an adjective of the other. One can use the word "proximity" to mean something other than "really close"; for example, we're in "proximity' to Alpha Centauri even though we're light-years apart. Suffix words don't necessarily mean what the base word means; for example, "primity" means "the quality of being first," which is different from the meaning of its base word "primitive". One can be "primitive" without being the most primitive. They're both relative terms, but mean different things. (For a more on-point example, we constantly talk about "proximate" cause even though some things that we legally call "proximate" hardly satisfy the requirement of being "very near" the resulting injury.)

The case is not really about the word "proximity" (or, even less, "proximate") and instead, in my view, revolves entirely around the word "reasonable." It's not reasonable, in context, to require hours and hours of travel. Justice Huffman cogently explains why. That's the word -- the only word -- that's truly at issue. That the statute uses the term "reasonable proximity" is no different than if it used the phrase "reasonable distance." "Proximity" in this context is just a synonym for "distance." It has no other independent meaning. What matters is if the distance (and time it takes to traverse it) is, in this context, reasonable. And it's not.

Wednesday, August 22, 2012

The Ninth Circuit includes various outlying territories. Guam. The Commonwealth of the Northern Marianas Island ("CMNI"). Places like that.

They're beautiful. Really. But as far as their court systems go, you don't necessarily have the same quality control as you do in the traditional fifty states. To take but one example, filling a district court position in Guam was once very difficult because it was nearly impossible to find any candidate who had actually paid their federal taxes (or even file a tax return). When your selection criteria essentially boils down to "Have you avoiding committing a federal felony every year for the past decade," that tells you something.

But that quality may be uneven doesn't mean that the justice system is uniformly bad. Which is why I wanted to mention this case.

Judge Trott certified a question to the Supreme Court of the CMNI and attaches its dispositive answer to the resulting Ninth Circuit opinion. Check out the underlying opinion. It's pretty darn good. The result it reaches seems eminently plausible, and it's reached in a manner that's indistinguishable from anything published in the "normal" fifty.

If I was H.B., and had done what he did, I'd be thanking my lucky stars that I received the sentence that was imposed here. It's good for him, he more than deserves it, and I could easily justify a much, much more onerous sentence.

"Both parties refer to the garage [the location where the rapes occurred] as a church and appellant refers to himself as a pastor. These characterizations are not supported by the evidence adduced at trial. No documentary or testimonial evidence proved that a legally organized church met at the compound or that the garage had been legally converted into a worship space. Also, no documentary or testimonial evidence proved that appellant was a legally ordained minister or that he was recognized as a minister, pastor, preacher or missionary by any Christian denomination or sect."

Well, I have a pretty good guess why both the defense as well as the prosecution were willing to refer to the garage as a church; namely, because it was. As the Court of Appeal's opinion itself reflects, the garage (1) had rows of pews in it, (2) had a pulpit at the front, (3) contained a prominent tub in which total immersion baptisms were routinely performed, and (4) was the site of regular church services attended by numerous people (including the victim). Maybe the Court of Appeal thinks this is sort of a "weird" church -- the participants thought that the defendant performed miracles, he claimed to have turned a lizard into a snake, the parishioners (including the victim) believed in faith healing, etc. -- but that it's not a church of which we're all familiar doesn't make it any less of a church.

If I hold services in my garage and call myself the Latest Christ and rows of attendees agree with me, well, you know what, that's a church. That this may not be a "legally recognized" church -- and I'm not exactly sure when the state got into the business of formally recognizing only certain types of churches -- or that my garage may not be "formally recognized" as a church (zoned?) doesn't matter in the slightest. It's a church. A place of worship. It is indisputably what it is -- and what it was here -- and the state doesn't get to define (much less legitimate) what a church entails.

Similarly, I'm pretty confident that one can legitimately call one's self a pastor even if you've not been "legally ordained;"; i.e., recognized by the state. Legally ordaining yourself is one way to go, but so's not getting ordained. If I recall from the history books, for example, Joseph Smith was just a farmer who thought he had a vision and found some plates while digging for treasure, so he and a bunch of other folks started worshiping in their own special way. No one legally ordained the guy, and no one zoned his barn (or whatever) as a church. But I'm pretty sure that Mormonism counts -- and counted -- as a religion, and that it's entirely proper to call where they regularly worshiped a "church".

Ditto here. We're not in the business of distinguishing between "legitimate" and "illegitimate" churches by deciding how nutty (or unpopular) we view the underlying religion. I think it might similarly might be wise not to take pains to declare that someone's place of worship isn't a "real" church. Seems to me you might just want to leave that one alone.

(Much less would I say that the parties' characterization of the garage as a church was "not supported by the evidence adduced at trial." Seems to me that the evidence about the pews, services, baptism tub, meetings, faith healings, etc. support precisely such a characterization.)

Sometimes extraneous, unnecessary comments liven up -- and may improve -- an opinion. In my view, this one doesn't.

P.S. - It's not that I don't potentially understand, by the way, where the footnote comes from. It may well be that the justices were disgusted by the defendant -- understandably so -- and were repulsed that he was able to rape someone through the use of his religious authority. I get it. But it happens. Even in established churches. Sadly. But that a religion is abused doesn't make it any less of a religion.

Your efforts unfortunately also including hiring the also-famous -- now infamous -- private investigator Anthony Pellicano to assist you. Including illegal wiretaps. So the FBI goes after you.

But you're used to getting out of sticky situations. So you lie.

Except, unbeknownst to you, the FBI has you red-handed. Because your buddy Pellicano also taped you discussing one of the illegal wiretaps. And the FBI has that tape. Oops.

So you're charged with a federal crime; in particular, lying to the FBI. Your lawyer persuades you to plead guilty -- you're totally busted, after all -- and you're sentenced to four months in prison.

Now, for many, that'd be the end of it. But I reiterate: You're a famous Hollywood director. You're important. You can't go to prison. Not you.

So you move to withdraw your plea. The district court's not buying it, so you file an appeal with the Ninth Circuit. And you win. Yay!

Well, you partially win, anyway. The Ninth Circuit just holds that you're entitled to an evidentiary hearing as to whether you can withdraw your plea. But on remand, the government ultimately withdraws any objection to you withdrawing your plea. Victory!

Except for one tiny thing. That just permits you to withdraw your guilty plea. Now you have to actually defend your conduct.

Oh, one more thing. Once you withdraw your plea, the government then replaces the single charge against you with two charges. Adding another false statement charge for good measure, as well as a count alleging that you lied to the district court at your guilty-plea hearing.

Oops.

Again, you're totally busted. So you withdrew your plea, but -- as my father would say -- you're still up s**t creek without a paddle.

So, ultimately, you plead guilty again. And this time, rather than four months, you get a yearin prison.

Triple oops.

You appeal yet again to the Ninth Circuit. But this time you lose. The district court properly ruled on your suppression motion. And, yes, the district judge (Dale Fischer) most assuredly didn't like you, but a judge not liking you because you're a liar -- and not being shy about saying so -- isn't a basis for recusal. Especially when, as your guilty plea reflects, you are a liar.

Sometimes the sequel isn't as good as the original. If anyone should have known that, it was John McTiernan.

But now he has an extra eight months in prison to reflect upon this reality.

Friday, August 17, 2012

I'll give you the statute and the facts of this case and you tell me what you think.

The statute first. The relevant provisions of the federal Trafficking Victims Protection Act permits an individual to sue a defendant that "obtains the labor or services of a person . . . by means of a scheme, plan or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person [] would suffer serious harm." The statute further defines "serious harm" as "any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm."

Now the facts. Claire Headley performed certain "services" for Defendant since she was 17. She was kept in a facility in California. Her mail was censored, her phone calls were monitored, and she had to get permission to use the internet. She worked over 100 hours every week for Defendant, and all of her income (except for $50/week) was given directly to Defendant.

When Defendant thought Claire misbehaved, it disciplined her severely. For example, as punishment for one alleged transgression, for over six months in 2002, Defendant prohibited Claire from eating, and required her to subsist only on protein bars and water. She lost 30 pounds.

Defendant did not permit Claire to become pregnant, as a pregnancy would (among other things) interfere with the services Claire provided. She nonetheless twice became pregnant. Defendant both times threatened Claire with punishment if she didn't have an abortion, so she had abortions.

Claire was forced to live in the same facility in which she worked. Defendant posted guards and security cameras at that location. Sometimes, when Claire was permitted to leave her workplace, Defendant assigned an escort to accompany her.

Those are the basic facts. But before you think that Claire was a gymnast for the Soviet Union in 1970, I have to add one more fact. Nothing physically stopped Claire from leaving. There were no bars. There was, however, one critical consequence. Because this was the only life that Claire knew since she was 17 -- and she was now 31 -- she would be leaving behind everything. No money. No occupational skills. No references. No friends. Indeed, Defendant made sure that if anyone left, the remaining workers would (1) refuse to interact with the departed worker, and (2) occasionally show up to remonstrate the worker from leaving and encourage her to return to providing services.

Claire kept working at the facility for 14 years because she could not believe that she could handle the emotional and financial consequences of leaving the only life she'd ever known as an adult.

Do the facts that I've described constitute something actionable under the statute?

There's no doubt that the Defendant "obtained labor" by means of a "scheme" under the statute. But was it through the threat of "serious harm," which -- again -- the statute defines as "any harm, whether physical or nonphysical, including psychological, financial, or reputational harm," that would cause a reasonable person in these circumstances not to leave?

I wanted to give you the unvarnished facts to let you decide. But let me add one additional fact as well. One that's entirely irrelevant to the Ninth Circuit's holding, but one that might nonetheless potentially have colored your textual analysis if you knew it from the outset. You might have figured it out already even from my carefully-crafted statement of the facts and the fact that I slightly edited the caption (and title of this post).

Defendant is the Church of Scientology.

I've got a pretty keen sense of how this case would come out if Claire was kept in a massage parlor in Guam under the same set of facts. With respect to a church, the textual analysis is the same, though there's a potential "ministerial" exception that the Ninth Circuit doesn't reach because it thinks the text of the statute is dispositive.

How statutes like this are applied to organizations we care about (e.g., churches) -- or are at least worried about interfering with -- is a toughie. This is an easy case if it's a massage parlor. We are not worried about stopping those, even if the plaintiff initially "voluntarily" joined it and was in theory free to leave. But when similar conduct is performed by religious organizations, we're very worried that we're in a very different situation. Text notwithstanding.

This is, in my mind, a tough case. Raising tons of issues that are difficult not only legally, but also socially. Some religions -- "cults" -- are problems. Either because of what they do to outsiders or to their own members (e.g., Jonestown). Figuring out how to address these problems within the confines of statutes that address larger issues, but are potentially applicable to religious institutions as well, is a problem that's not going away anytime soon.

P.S. - I'm not sure, by the way, that Scientologists would at all agree with Judge O'Scannlain's opinion when it states that members of SeaOrg -- the hard-core wing of Scientology -- must "make[] a symbolic one-billion-year commitment to serve the Church" (emphasis added). My admittedly uncertain understanding of Church beliefs is that this is a "symbolic" commitment by the member only in the same sense that, for example, many marriage ceremonies contain "symbolic" vows of fidelity. Yeah, it's symbolic. But it's literally true as well. You're making a promise. A promise that, in SeaOrg's case, lasts a billion years, and (given reincarnation) binds you throughout that entire time. For real, not merely as a symbol.

Thursday, August 16, 2012

Encino attorney Steven J. Horn gets retained to represent a husband and wife in a lot line dispute with their neighbors. Simple little lawsuit. Some fees, but nothing earth-shattering. Not going to put your kids through college or anything like that.

Horn (and his clients lose). Happens sometimes.

The clients hire a new attorney to represent them on appeal. Again, stuff like that happens. Sometimes the clients want a fresh view. No biggie. No more fees.

But then the clients obtain a reversal on appeal. Which is nice. Except the clients blame Horn for losing the case below.

Meanwhile, Horn's miffed that the clients haven't paid all his bills. So he sues 'em for the $44,000 they still owe.

The clients respond as you might expect. They counterclaim, alleging that Horn improperly billed them, misrepresented his experience in real estate matters and failed to timely tender the underlying case to their homeowners insurance company.

The parties can't (or won't) settle. The case goes to trial. The jury awards Horn his $44,000 in fees. But they also award the clients an equal amount on their fraud claims against Horn.

So if you're Horn, you're miffed. You're out your fees. You've got a finding of fraud against you. You're out the time (and money) you spent prosecuting your fee dispute. Not good.

But you'll live.

But the clients then appeal, claiming that they were entitled to attorney's fees. And they win. On remand, the trial court orders Horn to pay $380,000. Horn ends up settling by paying the clients $250,000.

Now, if you're Horn, you're hurting. You're out your fees. You're out what you shelled out to your attorneys. And you're out another quarter million. Ouch.

But the pain's not over.

Horn becomes convinced that the reason he lost is because his lawyer was terrible. So he files a claim against his attorney, who then promptly counterclaims for unpaid fees.

Shades of the underlying lawsuit, eh?

But this one gets arbitrated by JAMS, as required by the retainer agreement. The parties select Judge Schiavelli to arbitrate the thing. Retired district court judge. Good call for both sides, most would say.

The arbitration lasts five days. Schiavelli finds that Horn lacks credibility, but orders that both sides take nothing. He nonetheless invites either party to move for fees if they want. Both do. At which point, the arbitrator awards Horn's lawyer . . . over a quarter million dollars in costs and fees.

Deja vu. All over again.

Horn hires a private investigator, claims that Schiavelli had undisclosed conflicts in an attempt to vacate the arbitrator's judgment, and loses in the trial court. Horn appeals.

Nonetheless, I still might not have stretched to dismiss his appeal under the disentitlement doctrine. The appeal was easy enough to dismiss on the merits. As the Court of Appeal indeed does, albeit in dicta.

There are downsides to dismissing appeals for disentitlement. Sometimes litigants legitimately object to (and perhaps even disobey) judicial orders. That may sound contemptuous. Particularly when the judiciary is the one responsible for deciding whether that's in fact the case.

So there's at danger that, on occasion, the disentitlement doctrine may result in the dismissal of an appeal with merit. An appeal by someone whose conduct may not have been perfect but who nonetheless should prevail on appeal.

I'm fairly certain that's not the case here. And, again, I more than see where the Court of Appeal is coming from. It wants to spank Mr. Hofer, and sticking the disentitlement doctrine in his face does exactly that. It's a doctrinal way of saying "We don't like you. At all." An understandable sentiment.

But, in most cases, I'd nonetheless be inclined to sanction parties (and perhaps their counsel) before using the disentitlement doctrine. It's a valid doctrine. But one that should be applied sparingly.

Monday, August 13, 2012

Deciding whether the invocation of the right to counsel is "equivocal" or not occasionally presents difficult questions. As it does here.

But I agree with the California Supreme Court. If a suspect's answer to whether he wants an attorney isn't clear, the police can follow up with questions to see what the suspect means. Here, immediately after telling the suspect his Miranda rights, the officer asked the suspect: "Having in mind these rights that I just read, the detective would like to know if he can speak with you right now?" To which the suspect replied:

"If you can bring me a lawyer, that way I[,] I with who . . . that way I can tell you everything that I know and everything that I need to tell you and someone to represent me."

Is that sufficiently equivocal and/or unclear to permit the police to follow up by asking the suspect what he means by that?

Seems so to me. I'm not really sure what the suspect's saying here. Neither were the police. He might well have been saying "Give me a lawyer and I'll talk." But he might well have been saying something different. A fact (coincidentally) confirmed by the officer's follow-up questions, which were:

“[Officer Trapp]: Okay, perhaps you didn't understand your rights. Um . . . what the detective wants to know right now is if you're willing to speak to him right now without a lawyer present?
“[Defendant]: Oh, okay that‟s fine.
“[Officer Trapp]: The decision is yours.
“[Defendant]: Yes.
“[Officer Trapp]: It's fine?
“[Defendant]: A huh, its fine.
“[Officer Trapp]: Do you want to speak to him right now?
“[Defendant]: Yes.”

So I agree with the result of this case, which reverses the contrary (unpublished) decision of the Court of Appeal.

The only thing I'd add to the California Supreme Court's discussion -- that perhaps cuts back a little bit on it (though, again, I still agree with it) -- is that all this stuff was spoken in Spanish. So what we're reading is the transcript of the translation. Mind you, there's no objection to the translation. So it makes perfect sense to decide the case as if the translation is entirely accurate.

But when you're translating things, it's often very hard to decide whether something "makes sense" (i.e., is equivocal and/or unclear) or not. Yes, if someone who spoke English said: "If you can bring me a lawyer, that way I[,] I with who . . . that way I can tell you everything that I know and everything that I need to tell you and someone to represent me," I'd agree that that's sufficiently unclear to permit the officer to seek an elaboration.

Whether what the suspect said in Spanish was in fact unclear is harder to decide. At least for people (like me) who neither speak Spanish nor have access to the untranslated version of what the suspect said.

To give an example, down here in San Diego, we have a variety of English-language radio stations that (for regulatory and/or tax reasons) are broadcast from Tijuana, and are hence subject to Mexican rules that make the stations occasionally broadcast English-language statements from the Mexican government; e.g., political, agency, anti-corruption, get-out-the-vote, and other government-sponsored messages. I've probably heard a thousand or so of these things over the past decade. Despite the fact that these messages are scripted and articulated by government spokespeople pursuant to a set translation, to "pure" English speakers like me, the translated statements are often very unclear and/or make little sense in English. You constantly find yourself saying to yourself: "Wait. What exactly do you mean?" You can understand the basic message, but given the different syntax and words used -- presumably because language doesn't often perfectly translate from Spanish to English -- the statements sometimes seem confused.

It's quite possible to me that that's what transpired here. It's conceivable to me that the suspect here really was saying (in Spanish) that he wanted a lawyer, but that when translated to English, that message doesn't come out as clearly. Hence the California Supreme Court's opinion.

No way to know, of course. At least without hearing (and understanding) the original English.

But I wouldn't at all be surprised to see ambiguity arise from a translation. Happens all the time.

Friday, August 10, 2012

This is the latest in a series of opinions that makes clear that the federal judiciary is starting to take a different attitude towards internet-only child pornography cases; e.g., being very dubious of lifetime residency restrictions that essentially require the defendant to live in a rural area for the rest of his life.

The only thing I'll add to the opinion is that the court might want to include an actual citation in footnote seven, which reads: "The California Coalition on Sexual Offending’s website provides maps, produced by the Senate Office of Demographics, showing the exclusion zones pertaining to Cal. Penal Code § 3003.5(b), which prohibits a registered sex offender from residing “within 2000 feet of any public or private school,” or a subset of parks “where children regularly gather.” One exclusion zone map for Central California, for example, shows that only a few isolated areas remain in the Greater Los Angeles area for defendants to live when subject to the restriction."

But it took me about thirty minutes to find the thing. It's not at all prominent, nor is there a particular link in the CCSO's web page to this data.

I'll also add that, looking at the map for San Diego, the exclusion zones here only appear to be for public schools and (perhaps) larger parks. The area around my house, for example, is listed as a permissible zone for sex offenders, but I'm positive that's not true: we're very close to a private elementary school, right across the street from a park, etc. So the areas in which sex offenders can reside are even fewer in number than the map might reflect (moreover, as the Ninth Circuit's opinion mentions, the conditions here are even broader than those imposed by California, and would effectively banish sex offenders from any large city).

Thursday, August 09, 2012

It doesn't take a crystal ball to see that there will be an en banc call in this one. Or that, most likely, it'll prevail, and that the resulting opinion will (depending on the draw) probably reverse existing circuit precedent.

Wednesday, August 08, 2012

The Court of Appeal holds in this case that it's only a "de minimus" search -- and hence okay under the Fourth Amendment -- for a police officer (without a warrant) to insert a key into a residence to see whether it unlocks the door.

You can see where the Court of Appeal's coming from. Though you can certainly imagine the contrary arguments as well.

Imagine that this same case, however, came to the Court of Appeal in a different factual setting. One in which a defendant was sentenced to six years in prison for "burglary" based upon his insertion of a key into another's residence, and the prosecution argued that he was guilty given the time-honored rule that any entry into a residence -- "however slight" and even by a tool (e.g., a key) -- resulted in criminal liability. My strong sense is that, in such a case, this panel would not view the entry as de minimus but would instead uphold the imprisonment of the defendant for many years.

But what's illegal and unreasonable for individuals is perhaps legal and right for police officers.

It was (allegedly) accomplished basically the same way: By inputting fake ("erroneous") data into the reporting scheme. With milk, this allegedly resulted in manipulation of the minimum prices set by the government.

Judge Wu's excellent opinion has all the details. As well as a pretty persuasive result.

Monday, August 06, 2012

As you all probably know, real estate mortgages get issued by a particular bank, get "serviced" by different entities (e.g., the entities to whom you send your monthly payments), and then -- through MERS and other means -- get shuffled around through a plethora of different entities.

A federal statute, 15 U.S.C. sect. 1641(f)(2) expressly provides: "Upon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation."

You could see why this obligation might make sense. You may well not know who owns your loan. Your mortgage servicer does (since they have to give your monthly payments to them). You should be allowed to ask 'em, and they should be required to tell you. That way you can try to renegotiate your loan, arrange a short sale, or discuss other things about your mortgage. Something that you can't do if you don't know who owns it. So you can see why Section 1641(f)(2) might well mean exactly what it says.

See if you could come up with a theory, based on the text of the statute quoted above, that this language means anything other than what it appears to say. Then read the opinion and see if you think the Ninth Circuit has come up with the same theory and/or a more persuasive one.

Mind you, the Ninth Circuit says that, in 2010, the Dodd-Frank bill imposed in RESPA precisely the requirement that the plaintiff here alleged exists in TILA pursuant to Section 1641. So, currently, you do indeed have the right to find out who owns your loan.

But not before 2010. In TILA, the statute doesn't mean what you might think it means from just reading it.

Oh, yeah. Here's another thing that's going to get you sentenced to death. Even if you've got no criminal history and are otherwise seemingly a regular kid:

Going into your former high school with a shotgun and randomly killing numerous children.

That's what Eric Houston did in 1992. (You can read more about this Columbine-like shooting in the opinion. It's pretty detailed and graphic about what transpired. Even better, in my uninformed view, than the movie, which starred Rick Schroeder, Freddy Prinze Jr. and Henry Winkler.)

P.S. - I agree with Justice Liu that the trial court's attempt to "create levity" in this capital case was not exactly well-conceived. But I'd have taken a little bit more seriously than Justice Liu does the fact that the trial court, in a capital case about sanity (at the guilt phase) and defendant's psychological problems (at the penalty phase) told the jury that "really, all the psychology stuff is mumbo jumbo stuff." I agree that, in the context of this case, this isn't enough to reverse the judgment. But, unlike Justice Liu, I'd have definitely mentioned that making comments like this one is (1) erroneous, and (2) a horribly stupid idea. Albeit not one that requires reversal.

If you're broke and in need of Christmas presents for your kids -- in addition to crack cocaine -- please consider an income-producing strategy other than bludgeoning and strangling to death a 73-year old woman who lives near you.

Wholly apart from morality, although the "murder" approach may have relatively high short-term gains, it will ultimately lead to you being sentenced to death.

Wednesday, August 01, 2012

You may have an IQ of 88. You may have chronic brain damage. You may have a history of seizures. Your brain -- at least according to the CTs -- may have weirdly shrunk. Perhaps all of these due to (and certainly not helped by) being hit by a car when you were riding your bike in seventh grade, plus two motorcycle accidents, plus a car accident. All of which knocked you unconscious. Yes, all of these may well be true.

But you killed a four-year old kid. For $250. Which you negotiated up from $150.

That's going to get you sentenced to death by pretty much everyone. In legal parlance: No prejudice.

It's an interpleader case. A classic one: Proceeds of a life insurance policy. The insurance company faces conflicting claims and wants to deposit the fund and leave (as well as get its attorney's fees). No particular problem there. Done every day.

The complexity here is that some of the claimants -- the competing (alleged) beneficiaries -- claim that the life insurance company was negligent when it directed and/or participated in various acts relating to establishing the beneficiaries. The trial court held, however, that the stakeholder's liability was limited to the fund, so dismissed the claimant's claims.

The Ninth Circuit holds that this was error, and that's exactly right. The easiest way to get to this result is to note that, at common law, the right to interplead was denied when the stakeholder had independent liability to one of the claimants. However, that's no longer true under the Federal Interpleader Act or federal common law pursuant to Rule 22, both of which (unlike the traditional common law doctrine) allow actions "in the nature of" interpleader and don't retain the traditional common law limitations. But while interpleader itself is allowed, that doesn't shield the stakeholder from its substantive liability, which may indeed exceed the stake.

The Ninth Circuit gets that last point right. But it doesn't mention the traditional common law doctrine, and doesn't mention the revisions adopted by the federal system, both of which are critical components of the correct answer. But, again, it gets the policy right, so that's at least good.

The Ninth Circuit also thinks that its result is compelled by the Supreme Court's decision in Tashire, which in fact has nothing whatsoever to do with a stakeholder's independent liability. Tashire deals instead with the permissible scope of injunctive relief under federal interpleader, and holds that in cases in which "the tail wags the dog" -- i.e., when the interpled funds are a tiny portion of the underlying controversy (e.g., a huge auto accident with a tiny insurance policy issued to one of the participants) -- the court should exercise its discretion and not enter injunctive relief that encompasses the whole controversy, and should instead tailor the injunction so that it constrains only litigation against the tiny portion (the "tail") covered by the policy. That holding about injunctive relief in tail-wagging cases really says nothing at all -- much less anything dispositive -- about a case (like this one) that nowhere requests for an injunction and in which there's only one "dog" (one insurance policy) and no tail.

So to say, as the Ninth Circuit does, that this case is controlled by Tashire -- and to devote pages and pages to that decision -- seems wrong. Much more relevant are the legions of common law decisions about independent liability of stakeholders, which are directly on point and which aren't mentioned at all in the opinion.

One other thing. A minor point, but indicative of why scholars in the area might cringe when they read the Ninth Circuit's opinion. Plaintiffs brought the case in state court, and the defendant (the insurance company) removed it to federal court. This was totally fine, since it was a diversity case, in which the plaintiffs were each from a different state than the insurance company. Once in federal court, the insurer answered and interpled the funds. This too was jurisdictionally and procedurally proper.

Judge Paez nonetheless understandably wants to make sure that the court has jurisdiction, and also wants to make sure that he's discussing the correct law of interpleader -- which varies depending on whether it's Rule 22 interpleader or statutory interpleader. He mentions that the insurer's complaint (and, presumably, briefs) don't mention which interpleader is pled, but Judge Paez concludes that "the jurisdictional requirements of statutory interpleader were satisfied, as there was complete diversity between the parties and the amount in controversy far exceeded the jurisdictional minimum."

That's (again) the correct result, but for the wrong reason. Even putting entirely aside supplemental jurisdiction (which is really the proper -- omitted -- basis for jurisdiction over the ancillary interpleader claims here), statutory interpleader (1) requires only minimal, not complete, diversity, and (2) does not look to diversity of the parties -- which is what Judge Paez is talking about (Ps vs. Ds), but rather cares only about diversity of the claimants (here, amongst the Ps). I can't tell whether the Ps -- who were all from an extended family -- were themselves diverse. But that's the relevant inquiry, not diversity across party lines.

The jurisdiction that does exist -- again, Judge Paez reaches the correct outcome -- is not jurisdiction under statutory interpleader, but under Rule 22 interpleader, which employs only the usual rules about jurisdiction (i.e., complete diversity and $75,000 rather than minimal diversity and $500). That not only the right jurisdictional statute -- since there's then independent jurisdiction over the interpleader claim -- but may also affect the substantive analysis, since we're now talking about purported immunity under common law Rule 22 interpleader rather than a statutory analysis of purported immunity under statutory interpleader. (Truth be told, the answer is the same under either version of federal interpleader, but you at least want to be talking about the right one.)

I concede this isn't easy stuff. It's not like you run across interpleader cases every day. But when you do, you want to get it right. Here: Result right. Reasoning wrong.

The former's much more important than the latter, but given that it's a published opinion, the latter's far from insignificant as well.